Hodge v. U.S. Dept. of Justice

• Citation: 929 F.2d 153
• Decision Date: 04 April 1991
• Docket Number: No. 90-4122,90-4122
• Parties: Ana Lucia HODGE, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 153

929 F.2d 153

Ana Lucia HODGE, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Respondent.

No. 90-4122.

United States Court of Appeals, Fifth Circuit.

April 4, 1991.

Goldberg, Circuit Judge, dissented and filed opinion.

Richard S. Fischer, Nacogdoches, Tex., for petitioner.

Kimberly J. Barton, Gen. Atty. U.S. Dept. of Justice, I.N.S., Exec. Office for Immigration Review, Office of Immigration Judge, Houston, Tex., U.S. Dept. of Justice, Exec. Office for Immigration Review Bd. of Immigration Appeals, Falls Church, Va., for respondent.

Lori L. Scialabba, Alice M. Smith, Mark C. Walters, Asst. Director, Office of Immigration Litigation, Washington, D.C., for I.N.S.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before GOLDBERG, KING and DUHE, Circuit Judges.

KING, Circuit Judge:

Petitioner Ana Lucia Hodge (Hodge) is a Colombian citizen who prevailed in deportation proceedings brought by the respondent Immigration and Naturalization Service (INS). She now petitions for review of a decision by the Board of Immigration Appeals (BIA) denying her motion for attorney's fees and expenses under the Equal Access to Justice Act (EAJA), 5 U.S.C. Sec. 504. We find that the EAJA does not apply to deportation proceedings before the INS, and therefore deny Hodge's petition for review.

I. Background

The INS commenced deportation proceedings against Hodge on August 3, 1988, with the issuance of an Order to Show Cause, charging that Hodge was deportable under 8 U.S.C. Sec. 1251(a)(2) as an alien who remained in the United States for a longer period of time than permitted by the INS. A superseding Order to Show Cause was issued on December 8, 1988, in which Hodge was charged to be deportable under 8 U.S.C. Sec. 1251(a)(9)(B) as an alien whose conditional permanent residence was terminated under 8 U.S.C. Sec. 1186a.

On February 22, 1989, an immigration judge terminated the deportation proceedings as improvidently begun in light of INS's failure to comply with 8 C.F.R. Sec. 103.2(b)(2) when terminating the petitioner's conditional permanent resident status. On March 23, 1989, Hodge submitted a motion for attorney's fees under the EAJA. The immigration judge dismissed Hodge's request for lack of jurisdiction. On June 7, 1989, Hodge appealed the decision of the immigration judge to the BIA. The BIA affirmed the decision of the immigration judge and dismissed the appeal on February 1, 1990, on the basis that the Attorney General "has determined that immigration proceedings do not come within the scope of the EAJA" and "absent a regulatory change or controlling court order, an immigration judge has no authority under law or regulation to consider an application for attorney fees under the provisions of the EAJA."

II. Discussion

Under the Equal Access to Justice Act, parties in certain adversary administrative proceedings may recover attorneys' fees and costs from the government. 5 U.S.C. Sec. 504(a)(1) provides that "[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust." The EAJA primarily serves to ensure that individuals "will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved in securing the vindication of their rights." ¹

Under 5 U.S.C. Sec. 504(b)(1)(C)(i), an "adversary adjudication" is defined as "an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise...." Section 554 of Title 5 delineates the procedures for agency adjudications required under the Administrative Procedure Act (APA). Our determination of whether the EAJA applies to deportation proceedings before the INS requires us to consider the interrelationship between the INA, the APA, and the EAJA. Specifically, we must decide in this case whether Congress, in defining the scope of the EAJA, intended the term "under section 554" to encompass deportation proceedings.

Deportation proceedings (brought pursuant to the INA) comport closely with the requirements of the APA because the procedural dictates for deportation proceedings were modeled after the APA's requirements for adjudications. See Marcello v. Bonds, 349 U.S. 302, 309, 75 S.Ct. 757, 761, 99 L.Ed. 1107 (1955). Given the close resemblance of deportation proceedings to APA adjudications, Hodge asserts that the delimiting phrase of the EAJA--adjudications "under section 554"--applies to adjudications conducted consistent with the requirements of section 554, even if they are not directly governed by section 554. ²

A. Statutory Analysis of the EAJA

1. Statutory Language

Hodge relies on the Ninth Circuit case Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir.1988) (en banc) (holding EAJA applies to deportation proceedings), for the proposition that the words "under section 554"--as used in section 504 of the EAJA--encompass adjudications "as defined by section 554." Id. at 1024. The Ninth Circuit found that this reading was supported by the EAJA's legislative history, its remedial purposes, and the interpretation given the statute by the Administrative Conference of the United States (ACUS). Id. at 1023-26.

Other circuits, however, have reached a contrary conclusion. The Third, Sixth, Eleventh, and D.C. Circuits have all stated that, although the remedial purposes of the EAJA would be served by applying it to deportation proceedings, neither the statutory language nor the legislative history of the EAJA supports the finding that Congress intended the EAJA to reach deportation proceedings. With respect to the usage of the word "under" in the EAJA, the D.C. Circuit--in addressing the question whether "under" could mean "as defined by,"--was "unwilling so to stretch the word 'under' because the usage of the word in EAJA itself tugs against such creative reading...." St. Louis Fuel and Supply Co. v. FERC, 890 F.2d 446, 449 (D.C.Cir.1989). ³

The court noted that the usage of the word "under" at other locations within the EAJA could mean nothing other than "subject [or pursuant] to" or "by reason of the authority of." ⁴ The St. Louis court noted, furthermore, that the meaning of "under" that it gleaned from the EAJA's use of the word in other locations of the Act comports with its dictionary definition, while the alternative definitions suggested by Hodge do not. Id. at 450 n. 4.

We are to assume " 'that the legislative purpose is expressed by the ordinary meaning of the words used' " in the statute, ⁵ and find, based on the foregoing, that the ordinary meaning of "under," especially in the context of the EAJA, appears to be "governed by" or "subject to." In "rare and exceptional circumstances," however, legislative history justifies departure from the plain language of a statute because it evinces legislative intent contrary to that language. ⁶ We therefore examine the legislative history of the EAJA to ascertain whether Congress implied an intention to extend the EAJA to deportation proceedings.

2. Legislative History

Turning to the legislative history of the EAJA for support, Hodge notes that the Escobar Ruiz court relied, in part, on a 1980 House conference report that described an "adversary adjudication" as "an agency adjudication defined under the Administrative Procedure Act where the agency takes a position through representation by counsel or otherwise." 838 F.2d at 1023 (quoting H.R.Conf.Rep. No. 1434, 96th Cong., 2d Sess. 23 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 5003, 5012 (emphasis added)). Several circuits have since stated, however, that this bit of legislative history provides very attenuated support for the Escobar Ruiz court's expansive holding.

For example, the Sixth Circuit stated in Owens v. Brock that

[t]he use of the words "defined under" by the House Conference report is not particularly instructive. There is no evidence in the legislative history to indicate that the conference committee understood the term "defined under" to include within EAJA coverage those proceedings that are not governed by section 554 but instead are merely conducted in a similar manner. In fact, the use of a concrete term such as "defined" leads us to believe it probable that Congress intended precisely the opposite interpretation of section 504(b)(1)(C) from the one taken by the Ninth Circuit.

860 F.2d 1363, 1366 (6th Cir.1988). ⁷ The D.C. Circuit, moreover, in St. Louis, criticizes the Escobar Ruiz court's reading of the conference report, pointing out, inter alia, that the definition provision placed in the conference text was identical to the one reported by the House Judiciary Committee, whose report indicates that "under" means "subject to." 890 F.2d at 450-51.

In a recent Third Circuit opinion, moreover, the court stated that "Escobar Ruiz's interpretation of 'an adjudication under section 554' strikes us as strained and untenable. In our view, Escobar Ruiz was justifiably criticized in Owens v. Brock and St. Louis Fuel and Supply Co. for its expansive statutory interpretation." Clarke v. INS, 904 F.2d 172, 175 (3rd Cir.1990) (citations omitted). The Eleventh Circuit also rejects the Ninth Circuit's statutory interpretation, stating that they "are persuaded by the reasoning of the Sixth and District of Columbia Circuits as well as ... [the] Third Circuit decision" that Congress intended "under" in section 504 to mean "governed by" or "subject to" section 554. Ardestani v. United States Dep't of Justice, INS, 904 F.2d 1505, 1510-11 (11th Cir.1990).

Despite the overwhelming judicial authority to the contrary, we nevertheless consider Hodge's arguments in turn. Among other things, she...